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Fernschild v. Commissioner of Motor Vehicles

Court of Appeals of Connecticut

October 24, 2017

MATTHEW FERNSCHILD
v.
COMMISSIONER OF MOTOR VEHICLES

          Argued May 25, 2017

          Devin W. Janosov, with whom was Donald A. Papcsy, for the appellant (plaintiff).

          Drew S. Graham, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (defendant).

          Sheldon, Beach and Mihalakos, Js.

         Syllabus

         The plaintiff, who had been arrested for operating a motor vehicle while under the influence of intoxicating liquor, appealed to the trial court from the decision of the defendant Commissioner of Motor Vehicles suspending the plaintiff's motor vehicle operator's license for a period of six months, pursuant to the applicable statute (§ 14-227b), for his refusal to submit to a breath test to determine his blood alcohol content. The trial court rendered judgment dismissing the plaintiff's appeal, from which the plaintiff appealed to this court. Held that the record did not contain substantial evidence to support the finding by a hearing officer that the plaintiff had refused to submit to a chemical analysis of his breath; the record did not include the necessary factual recitation to support a conclusion that the suspension of the plaintiff's motor vehicle operator's license was based on substantial evidence, as the evidence before the hearing officer supporting a finding of refusal included only conclusions by the police officers that the plaintiff refused the breath test, and the record contained no description of the behavior, conduct or words of the plaintiff that led the officers to conclude that there had been a refusal, either expressly or by conduct.

         Procedural History

         Appeal from the decision of the defendant suspending the plaintiff's motor vehicle operator's license, brought to the Superior Court in the judicial district of New Britain and tried to the court, Schuman, J.; judgment dismissing the appeal, from which the plaintiff appealed to this court. Reversed; judgment directed.

          OPINION

          BEACH, J.

         The plaintiff, Matthew Fernschild, appeals from the judgment of the Superior Court dismissing his appeal from the decision of the defendant, the Commissioner of Motor Vehicles (commissioner), ordering a six month suspension of his license to operate a motor vehicle, pursuant to General Statutes § 14-227b, [1] for his refusal to submit to a chemical alcohol test. The plaintiff claims that the trial court improperly concluded that there was substantial evidence in the record to support the finding of the hearing officer that the plaintiff refused to submit to a chemical analysis of his breath. We agree and reverse the judgment of the trial court.

         The following facts and procedural history are relevant to the disposition of the appeal. On February 19, 2015, the plaintiff was arrested and charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a.[2] Following the incident, Officer Brian Hamm of the Stratford police department prepared a report that included the following information. When Hamm arrived on the scene, the plaintiff's vehicle was disabled in a snowbank. Upon asking the plaintiff to place the vehicle in park and step out of the vehicle, Hamm observed that the plaintiff appeared confused. He asked Hamm and Sergeant Rosenbaum several times where he was. Hamm had to lean the plaintiff against his vehicle because of the plaintiff's inability to stand safely on his own. The plaintiff said that he had been playing tennis and, when asked where he was going, he responded, ‘‘tennis.'' Hamm noted that the plaintiff appeared to be under the influence of alcohol or drugs. Neither he nor Rosenbaum were able to detect an odor of alcohol at that time because of the cold weather.

         Hamm and Rosenbaum then asked the plaintiff if he had any medical issues, and the plaintiff responded that he might be a diabetic. The plaintiff was ‘‘very disoriented, '' and said that he did not know where he was. Because of the plaintiff's inability to answer questions, Hamm requested that Stratford fire and emergency medical services respond to the scene. Another officer went to the plaintiff's residence to determine if his family was aware of any medical conditions affecting the plaintiff; the response was that the plaintiff had no known medical condition. The plaintiff was placed in the rear of the patrol vehicle to stay warm. After Hamm and Rosenbaum sat in the patrol vehicle for a few minutes, they were able to detect the odor of alcoholic beverages. Stratford fire and emergency medical services arrived at the scene and, after evaluating the plaintiff, ‘‘cleared [him] of any medical emergency.'' The plaintiff refused medical treatment.

         Hamm did not conduct any field sobriety tests because of the inability of the plaintiff to stand and the plaintiff's failure to cooperate in answering questions. The plaintiff was arrested and transported to the Stratford police station, where he was processed. According to Hamm's report, the plaintiff ‘‘refused to waive his rights and also refused to answer any questions in the postarrest interview. . . . [The plaintiff] was afforded the opportunity to call an attorney at [2:24 a.m.]. [The plaintiff] refused to submit to the breath test.''

         Pursuant to § 14-227b (c), Hamm completed an A-44 form.[3] He checked a box indicating that the plaintiff had refused to perform field sobriety tests and had refused to answer whether he had any physical illness or injury preventing him from performing the field sobriety tests. Hamm noted on the form that probable cause to arrest was based on the motor vehicle crash and the odor of alcoholic beverages on the plaintiff's breath. The second page of the form, as filled out by Hamm, indicated that the plaintiff had refused to answer questions or to take a breath test. Sergeant Anthony Rhew swore to a printed statement on the form that the plaintiff ‘‘refused to submit to such test or analysis when requested to do ...


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